Harvard prof tells judge that P2P filesharing is “fair use”

Harvard Law professor Charles Nesson is headed to federal court this summer to …

Wholesale copying of music on P2P networks is fair use. Statutory damages can't be applied to P2P users. File-swapping results in no provable harm to rightsholders.

These are just some of the assertions that Harvard Law professor Charles Nesson made last week in his defense of accused file-swapper Joel Tenenbaum. In court filings, Nesson spelled out his defense strategy, which doesn't appear to involve claims that his client "didn't do it." Instead, Nesson argues that it doesn't matter if Tenenbaum copied music; such noncommercial uses are presumptively "fair" and anyone seeking to squeeze file-swappers for statutory damages is entitled to precisely zero dollars.

The strategy certainly doesn't lack for boldness. In making the case that statutory damages only apply to commercial infringers, Nesson says that his reading of the law is "constitutionally compelled." His most interesting argument is that the law offers rightsholders the chance to seek either statutory or actual damages, but that the two are meant to be equivalent.

"It would be a bizarre statute indeed that offered two completely unrelated remedies," he writes, "one which granted actual damages and lost profits, and the other of which granted plaintiffs the right to drive a flock of sheep across federal property on the third day of each month."

If the two remedies are equivalent, and if "individual noncommercial copying results in no provable actual harm to the copyright harm holder," then actual damages would be zero—and so would statutory damages. "In this context, it would be unreasonable to consider the $150,000 per infringement authorized [by the law] as an appropriate substitute for the zero actual damages."

(The recording industry has not sought $150,000 per infringement in any case, and the statute actually allows a spread that begins at $750 per infringement. In the Jammie Thomas trial, a jury settled on an amount close to $10,000 per song.)

It's all fair use

In any event, all of this statutory damages talk doesn't matter, because Nesson claims that Tenenbaum's use of the songs at issue here was "fair use" and thus not an infringement at all. It's a gutsy move to claim that wholesale downloads of complete copyrighted works for no purpose higher than mere enjoyment of music somehow satisfies the famous "four factor test" for fair use claims, but Nesson believes he can win over a jury.

"Defendant Tenenbaum expects and plans to offer the jury evidence relating to each one of these four factors," Nesson wrote in his court filing, "just as they are articulated in the statute, with the jury to decide their meaning as they apply to the facts of his particular case."

Nesson has been floating this idea to his supporters for some time, but the reception has been frosty. Lawyers like Lawrence Lessig, a huge fan of "free culture," remixing, mashups, and reduced copyright protections, wrote in an e-mail to Nesson that "of course [Tenenbaum's conduct] was against the law, and you do the law too much kindness by trying to pretend (or stretch) 'fair use' excuses what he did. It doesn't."

And Terry Fisher, who heads Harvard's Berkman Center for Internet & Society and is an expert on fair use, pointed out that P2P filesharing would likely fail the four factors test. "This is not to suggest, of course, that it's sensible for the legal system to be set up in such a way as to enable and encourage the RIAA to go after people like Joel," he wrote. "I devoted much of a book to arguing that it’s not—and I'm happy to testify to that effect. But the fair use doctrine does not, in my view, provide a plausible vehicle for reform."

But last week's court filings indicate that this is precisely how Nesson intends to argue the case. As for the "four factors," he plans to address them... but also to go far beyond them. Nesson will introduce "other factors" that the jury should consider in the case, which include "the copyright holder's knowledge of and assumption of risk when it published the copyrighted work that work would be ripped and shared on P2P networks."

Should Nesson win, he will essentially legalize the sharing of all digital goods, copyrighted or not, by noncommercial users. Given that he wants to make the case about big principles like fair use and the applicability of statutory damages—and not about whether Joel Tenenbaum did what he is accused of doing—the music industry is likely to fight even harder to ensure that Nesson's preferred outcome is not realized. The fireworks are scheduled to begin this summer in Massachusetts federal court.

Originally posted by Daveosis:I thought the whole fair use thing had been brought up before and shot down... Am I imagining things? (wouldn't be the first time.. :P)

I'm pretty sure that nobody has been crazy enough to try this argument before. Most of the jurisprudence has to do with the liability of the software developers / service providers who have generally tried to argue that they whether or not what their users are doing is illegal they aren't responsible.

There's however one characteristic P2P has that plain old stealing doesn't have. With plain stealing there's a one to one relationship between the two. With P2P there's a one to many. The infringer has a copy and he/she has shared that with several others and so forth and so on. The damages aren't one to one because the consequences aren't.

quote:

Nesson will introduce "other factors" that the jury should consider in the case, which include "the copyright holder's knowledge of and assumption of risk when it published the copyrighted work that work would be ripped and shared on P2P networks."

Right, and what happens when risk goes up? The argument may be valid but I don't think the consumer will end up being the winner in the long run.

Originally posted by Ostracus:Right, and what happens when risk goes up? The argument may be valid but I don't think the consumer will end up being the winner in the long run.

I would imagine that rights holders being able to use encryption, no matter how trivial and easily breakable, to nullify any laws that grant fair use or similar makes up for that risk. While I agree the argument being made in court probably isn't very accurate, the RIAA and similar can't continue to have it both ways.

Originally posted by Ostracus:There's however one characteristic P2P has that plain old stealing doesn't have. With plain stealing there's a one to one relationship between the two. With P2P there's a one to many. The infringer has a copy and he/she has shared that with several others and so forth and so on. The damages aren't one to one because the consequences aren't.

There's another characteristic. One can't prove that 'stealing' a digital copy results in damages at all, as with stealing something physical. I've seen people pass along and copy external hard disks filled with hundreds of gigs of crap that they'd never otherwise purchase.

Originally posted by Ostracus:There's however one characteristic P2P has that plain old stealing doesn't have. With plain stealing there's a one to one relationship between the two. With P2P there's a one to many. The infringer has a copy and he/she has shared that with several others and so forth and so on. The damages aren't one to one because the consequences aren't.

What consequences? It still hasn't been shown conclusively that the damages are anywhere near as big as the RIAA claim, and study after study shows that P2P has a beneficial effect on the music industry (e.g. http://news.bbc.co.uk/2/hi/technology/8049495.stm). Every claim to contrary makes the huge, unfounded assumption that everyone who "pirated" would buy the album instead if piracy was not available. That's simply, demonstrably untrue. In fact, many studies show that people who pirate the most music also buy the most.

The thing is, most physical copying is done for profit, that's why the fines are so high. They're disproportionate to the "actual" losses because the laws were written at a time when copying was only done for financial gain. That's not true now, so the fines are too high. It's time the RIAA stopped trying to sue and restrict its customers and compete in the modern age. The consumer is winning, slowly (see: removal of DRM, for example), and the RIAA would already be dead if it didn't control most major music outlets.

There's another characteristic. One can't prove that 'stealing' a digital copy results in damages at all, as with stealing something physical.

Agreed. When the internet first started coming into it's own, CD sales went down. It was discovered that people could send songs along the internet. The two were instantly correlated, and the big labels started investing heavily in "education" campaigns on just how illegal/immoral copying files were.

Correlation does not imply causation. Because one thing went up while another thing went down, doesn't mean the one is the reason for the other. Maybe people just plain don't buy as much music. I for one have discovered sites like Jamendo that actually encourage free downloads, last.fm, noisetrade.com (a site that trades either word-of-mouth or voluntary donations for downloads), and haven't bought any music from the major labels unless I've had to in a long time. This will inevitably translate to a (slight) decrease in revenue for the labels. It would be a huge disservice to blame *my* decrease on a file-sharer who has actually brought in 2 or 3 new paying customers from his zeal for sharing his music.

In the current climate, it looks pretty bleak for Nesson. But I find it hard to believe it will last. Morons have been opposing new things since things were called "new". Give it a couple more decades, and their whole argument will seem as dumb as those who were terrified of the radio.

I can't wait to see "Piracy is stealing" videos alongside videos like this one on how inflation is gonna save all our lives:

The notion that 'P2P filesharing is fair use' may seem ridiculous, but when we actually compare it to CD ripping in the context of the "four factor test", we can see many similarities. Is CD ripping considered "fair use"? Let's take a look at the criteria:

1. the purpose and character of your use 2. the nature of the copyrighted work 3. the amount and substantiality of the portion taken, and 4. the effect of the use upon the potential market.

The first three criteria don't reveal any differences between filesharing and CD-ripping. As for the fourth criterion, many P2P filesharers use filesharing to "try and buy"the content, so filesharing can have a positive effect upon the potential market. On the other hand, people are ripping CDs only because they don't want to pay for the second copy.

If p2p sharing is a copyright violation than so should be lending a friend a CD, DVD or Book, and the entire era of VHS and cassette tape recorders would have been illegal.The RIAA has dragged the argument so far to their side that even rational counterarguments seems radical. Classic propaganda.

1. Assert that defendent's use of work is an example of "trivial use". [De minimis defense - When the plaintiff establishes only a trivial use of the copyrighted work by the defendant, there is no infringement.]

2. Demonstrate that defendent's use of work has no substantial market impact [Courts have held that a non-commercial use is not fair use when it has a substantial market effect. In cases with a small-scale impact, courts are more receptive to arguments regarding the effect on the copyright owner's market or potential market.]

3. And, of course, copyright is not theft [That information can be replicated without destroying an original is an old observation,[56] and a cornerstone of intellectual property law. In economic terms, information is not a rival good; this has led some to argue that it is very different in character, and that laws for physical property and intellectual property should be very different.]

IANAL but here's somewhere to start the discussion. The best thing that can come out of this case is a distinguishing between COMMERCIAL and PERSONAL copyright infringement - that is the ideal outcome.

Is it just me or does this movie remind anyone of the plot to some movie. Small time defendant is being defended by a high priced attorney who is not so much as fighting his case but using it as a vehicle for some other agenda.

It seems to me the best possible solution for the guy would have been to have the riaa drop the case but with the case that the Harvard prof is using that makes the scenario less and less likely. I think someone should have a reality check for everyone involved in this case before they set some precedent that will make it worse for everyone.

I think the RIAA just breathed a sigh of relief. When it was first announced that Nesson was going to lead the defense, everyone thought that the RIAA would get their collective asses handed to them, but with every new announcement, Nesson is looking crazier and crazier.

Frankly, I don't think he has a chance in hell of winning this case. Why? Because even if he could convince a jury that P2P is fair use, the judge will never allow the jury to decide that issue. Technically, they have the right to decide any way they want, but I'd be willing to bet anything that the judge will basically tell them that if the plaintiffs prove that Joel was sharing music, they MUST find him quilty.

"the copyright holder's knowledge of and assumption of risk when it published the copyrighted work that work would be ripped and shared on P2P networks."

This is what caught my attention. Wow, this could be the right angle. Effectively, the recording company knew this would happen and decided to release the content anyway, judging that it was worth it because they could make more money by releasing despite that it may be infringed than by not releasing it at all. It's going to depend on spin, but this is the first defense in a long time that made me turn my head.

frosty: what exactly do you mean when you say "CD ripping". You mean ripping a CD that you own so that you can play it on all your devices? The "purpose and character" of that use is pretty different from p2p sharing.

The thing is, most physical copying is done for profit, that's why the fines are so high. They're disproportionate to the "actual" losses because the laws were written at a time when copying was only done for financial gain. That's not true now, so the fines are too high. It's time the RIAA stopped trying to sue and restrict its customers and compete in the modern age. The consumer is winning, slowly (see: removal of DRM, for example), and the RIAA would already be dead if it didn't control most major music outlets.

Also, most of the law written about copyright infringement centered around having to attempt to profit from it in order to qualify as copyright infringement. After Napster, many rights holders have been attempting to rewrite law to include non-profit minded motives (or more to the point, bullying people into believing that is true). There still may be laws on the books that are like that. Even if he wins, the loophole may close hard and fast afterward.

Don't get too "dooms day" like with this defense yet. Nesson is a smart man. This might be the very basic foundation of his argument but that doesn't mean it will follow the same script as others for this. It might be that he can convince a jury that it is fair use but use another context to place it in practical realistic terms so a jury can understand it. So far it seems, especially in the RIAA cases, that the juries have been taken advantage of in some ways 'technically' - the "IP identifes a person" thing for example and the judges flawed instruction in Jammie's case that making available is infringement. Its likely that a lot of juriors don't understand the technical side of things as fully as they would if someone was caught red handed with a physical theft. Nesson just might put it in a way they can understand and end up convincing the jury and the court with a sound logical argument that can't be denied.

Originally posted by theseum:frosty: what exactly do you mean when you say "CD ripping". You mean ripping a CD that you own so that you can play it on all your devices? The "purpose and character" of that use is pretty different from p2p sharing.

Yes, I mean ripping a CD that I own. But I can't agree that the "purpose and character" of this use is significantly different. It's important to realize what this criterion actually means. In both cases we're dealing with non-transformative, non-commercial use. I simply copy the song in order to avoid paying for the MP3 file. This kind of use differs from parody, commentary and other kinds of transformative use. The fact that I own the CD doesn't give me the right to make new copies, so this fact is irrelevant.

IANAL but here's somewhere to start the discussion. The best thing that can come out of this case is a distinguishing between COMMERCIAL and PERSONAL copyright infringement - that is the ideal outcome.

Well from the "not a lost sale" defense there's effectively no difference between the two from the copyright holders POV. The money never makes it into their hands either way. And from the "free advertising" argument it shouldn't matter if a commercial middleman's doing the "pimping" of their product.

Originally posted by RedSkull:If p2p sharing is a copyright violation than so should be lending a friend a CD, DVD or Book, and the entire era of VHS and cassette tape recorders would have been illegal.

That doesn't follow. When you lend your copy to someone else, you're not making and distributing another copy.

Then there are those of us who have completely lost interest in the music out there, that we switched to things like NPR and just listen to what we already bought in the mid to late 90s with our student loan refund money that was supposed to go towards next semester's bill.

I'm going to show my age here, maybe, in high school I used to tape record songs broadcast over the radio. Now the fidelity wasn't good, and I often had to put up interrupting DJs talking over the intro, etc, etc. On full concerts or radio specials, I would try to edit out the commercials (or lousy songs), maybe record onto a second tape on a double cassette deck. Now, speaking commercially, there are issues of quality, the ability of advertisers/sponsors to get heard (on the first copy) the expense of buying the tapes and time and effort to make more than a couple of copies. Apparently the recording industry didn't feel threatened (by the 80s anyways)and AFAIK no one got in any trouble for having tapes made from the radio. Now I understand how the easily copied and distributed nature of digital files is more of a threat businesswise, but legally how is it different? Isn't the quality and ease of distribution only issues of degree? I don't think the judge will buy the argument Tenenbaum's lawyer is making... but from a layman's point of view, it has merit. In a better world MP3s should be considered advertisements for the band, their live performances, and other merchandise. OTOH the court will probably castrate him.

But what about all those mix tapes you made your friends back in the day isn't that copyright infringement? If this is the case we should have all been in jail as teenagers. The point is I wouldn't buy the music, it's not on my top list of things to get on the next trip to wally world. If I can't download the music then I'll just listen to it on the radio either way they aren't making money off me. Not because of some "Anti RIAA" stance that I hold dear, but just because it's not what I'll spend my money on. I'm the type of person who will wait for a movie to come out on cable before spending cash to see it at a theatre, I'm sure there are lot's of people like that out there.

My Son doesn't download music, but he doesn't buy it either he'll sit and listen to playlist.com or last.fm Why go and buy it when He can listen to it?

The RIAA needs to realize it's business model is outdated and get with the times.

I think folks would look down on p2p if the sharers were making money off of it. But folks who primarily share do so freely. It's difficult to quantify how much of a market impact it's making. It's not like selling stolen cigs. Need more court-cases so we can hurry up and set the precedences for future law.

From the article:It's a gutsy move to claim that wholesale downloads of complete copyrighted works for no purpose higher than mere enjoyment of music somehow satisfies the famous "four factor test" for fair use claims, but Nesson believes he can win over a jury.

Who says he ever gets to argue that in front of a jury? This defense theory is so lacking in legal or factual support that the judge may very well grant an in limine motion precluding Nesson from presenting this theory. Even if Nesson does get to argue it, and persuades a jury with it, the judge will grant JMOL, and I seriously doubt any appellate court will vacate JMOL when the jury verdict so blatantly ignores the law.

Nesson's argument would be nice to hear if he were in Congress. As an advocate, his behavior appears reckless.

Originally posted by Gilgamesh:Even if Nesson does get to argue it, and persuades a jury with it, the judge will grant JMOL, and I seriously doubt any appellate court will vacate JMOL when the jury verdict so blatantly ignores the law.

Originally posted by Ostracus:With P2P there's a one to many. The infringer has a copy and he/she has shared that with several others and so forth and so on. The damages aren't one to one because the consequences aren't.

You do realize that people aren't sharing N full copies with N people, right? You typically get bits and pieces from many different sources. Considering the severely asymmetric connections standard though, the number of full copies shared is typically around one, or less if you are a jerk.

Regardless of the number of copies though, the prosecutors should need to prove actual damages, or at least that N full copies were transfered. The fantastical statutory damages being thrown about are absurd.

Originally posted by Gilgamesh:Even if Nesson does get to argue it, and persuades a jury with it, the judge will grant JMOL, and I seriously doubt any appellate court will vacate JMOL when the jury verdict so blatantly ignores the law.

The concept of fair use is a part of the law, isn't it?

Moreover, fair use can only be determined (in any individual case) in court. So it seems like this is the perfect venue for that argument. Now, whether it's actually a good argument in this case is another matter. I'm inclined to agree with Lessig. However, I think if Nesson can get a jury/judge to agree that out of control damages are unacceptable, that would be a huge win all by itself.